Case 2:20-cv-02046-APG-DJA Document 16 Filed 11/06/20 Page 1 of 8

1 AARON D. FORD
Attorney General
2 GREGORY L. ZUNINO, Bar No. 4805
Deputy Solicitor General
3 CRAIG A. NEWBY, Bar No. 8591
State of Nevada
4 100 N. Carson Street
Carson City, Nevada 89701-4717
5 (775) 684-1237
glzunino@ag.nv.gov
6 cnewby@ag.nv.gov
7 Attorneys for Barbara Cegavske
8
UNITED STATES DISTRICT COURT
9 DISTRICT OF NEVADA

10 JILL STOKKE, an individual, CHRIS

PRUDHOME, an individual, MARCHANT Case No. 2:20-cv-02046-DJA
11 FOR CONGRESS, RODIMER FOR
CONGRESS, OPPOSITION TO PLAINTIFFS’
12 EMERGENCY MOTION FOR
Plaintiffs, TEMPORARY RESTRAINING
13 ORDER AND PRELIMINARY
vs. INJUNCTION
14
SECRETARY OF STATE BARBARA
15 CEGAVSKE, in her official capacity, and
CLARK COUNTY REGISTRAR OF
16 VOTERS JOSEPH P. GLORIA, in his
official capacity,
17
Defendants.
18

19 Defendant Barbara Cegavske in her official capacity as Nevada Secretary of State, by and

20 through counsel of record Gregory L. Zunino, Deputy Solicitor General and Craig A. Newby, Deputy

21 Solicitor General hereby submit this opposition to Plaintiffs’ Motion.

22 DATED this 6th day of November, 2020.

23 AARON D. FORD
Attorney General
24 By: Craig A. Newby
GREGORY L. ZUNINO, Bar #4805
25 Deputy Solicitor General
CRAIG A. NEWBY, Bar #8591
26 Deputy Solicitor General
Tel: (775) 684-1237
27 gzunino@ag.nv.gov
cnewby@ag.nv.gov
28 Attorneys for Defendant Barbara Cegavske, in her
official capacity as Nevada Secretary of State
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1 Secretary of State Barbara Cegavske opposes Plaintiffs’ Emergency Motion for

2 Temporary Restraining Order and Preliminary Injunction. The Secretary’s opposition is

3 made and based upon all matters of record herein, the Memorandum of Points and

4 Authorities submitted herewith, and upon such oral arguments as the court may allow at

5 the time of hearing of this matter.

6 MEMORANDUM OF POINTS AND AUTHORITIES

7 I. INTRODUCTION

8 Premised on purported violations of Nevada statute that were rejected in Nevada

9 state district court and pending before the Nevada Supreme Court, Plaintiffs seek

10 emergency relief from this federal court to stop Clark County’s continued processing and

11 counting of mail ballots. Instead of attempting to surmise how the Nevada Supreme

12 Court would resolve Nevada law, this court should abstain from considering this case.

13 Even if this court chose to undertake an independent examination of Nevada law,

14 nothing proffered by Plaintiffs requires injunctive relief. “A preliminary injunction is an

15 extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council,

16 Inc., 555 U.S. 7, 24 (2008). Here, the Winter factors, specifically Plaintiffs’ unevidenced,

17 unmeritorious legal arguments and the weighing of the public interest and the equities do

18 not support granting injunctive relief.

19 II. REVIEW OF THE EMERGENCY MOTION AND THE UNDERLYING

COMPLAINT
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21 In their complaint, Plaintiffs Jill Stokke, Chris Prudhome, Marchant for Congress

22 and Rodimer for Congress make unsupported allegations pertaining to Clark County’s

23 conduct of the 2020 election. See Compl. at ¶ 11. 1 In this motion, Plaintiffs make two sets

24 of allegations.

25 First, Plaintiff Stokke alleges that someone else cast her mail vote without her

26 knowledge, a potential felony under Nevada Revised Statute 293.775, when she

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Plaintiffs have not proffered evidence for these allegations and do not merit a
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response until or unless they do so.

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1 attempted to early vote. 2 The Secretary of State’s Office independently investigated Ms.

2 Stokke’s complaint. Rather than affirm that she had not submitted the mail ballot in

3 writing (effectively challenging the prior vote) to receive a provisional ballot, Ms. Stokke

4 refused because she did not feel she could implicate someone else for a crime. Instead of

5 addressing this allegation on one ballot, Ms. Stokke seeks to stop all continued use of the

6 Agilis machine on an emergency basis for Clark County in its entirety. This is absurd and

7 must be rejected by this court.

8 Second, Plaintiff Prudhome, alleges that he was an observer for the Trump

9 Campaign and a credentialed member of the media at the same time. See Prudhome Decl.

10 at ¶ 2 (Trump observer), ¶4 (media). 3 Nevada statute specifically distinguishes observers

11 from the media. NRS 293.274(3). Further, Nevada statute does not authorize observers or

12 media to take pictures of the ballot counting. Instead, should the county record or

13 photograph ballot counting, a registered voter may submit a request for any such

14 recording or photograph. NRS 293B.353(3). After not being allowed to be a Trump

15 observer and media at the same time, Prudhome alleges that Clark County staff told him

16 “they would be counting for an hour and a half,” but “after just a few minutes, they

17 ordered all of us observers out.” Id. at ¶ 6. He does not allege that the tabulation

18 continued without observers that evening. 4 Based on that unstated and unsupported

19 allegation, Prudhome seeks an injunction to “be required to allow meaningful access to

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2 Voting twice also violates Nevada statute. See NRS 293.780.
3 Per internet research, Mr. Prudhome is the president of Sunvision Strategies, a
24 firm that works on political and corporate strategies and strategic communications. He
also works to engage millennials and minorities in the voting process and has appeared
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frequently on Fox News Channel. See https://www.foxnews.com/person/p/chris-prudhome
4 Plaintiffs’ counsel makes additional allegations pertaining to Mr. Prudhome
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without specifying how he would have “personal knowledge” of these items. See Mot. at
27 3:11-20. None of these allegations, such as an attempted denial of “entry to the office,”
screens being “all turned off and faced away from him,” or election officials asking “law
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enforcement to remove him from the building,” were attested to by Mr. Prudhome
himself.
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1 the ballot counting process.” Mot. at 8:1-3. Clark County has already agreed to provide

2 additional access, as part of a voluntary dismissal of a Nevada state court case. 5

3 It is under these extraordinary circumstances that Plaintiffs seek extraordinary

4 injunctive relief premised on this court’s interpretation of Nevada statute. The court

5 should abstain from doing so. Alternatively, Plaintiffs fail to meet their evidentiary

6 burden to obtain extraordinary relief.

7 III. STANDARD OF REVIEW

8 “A preliminary injunction is an extraordinary remedy never awarded as of right.”

9 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Plaintiffs otherwise

10 correctly identify that they “must establish” four factors, including a likelihood of success

11 on the merits.

12 IV. LEGAL ANALYSIS

13 A. Plaintiffs are Highly Unlikely to Succeed on their Speculative

Claims, which Lack a Factual or Legal Basis 6
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First, Plaintiffs do not have a valid Elections Clause claim because Clark County’s
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use of the Agilis machine complies with Nevada statute. Section 22(2)(a) of Assembly Bill
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4 specifically allows Clark County’s registrar to authorize “mail ballots to be processed
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and counted by electronic means.” Section 23 does not specify by what method “the clerk
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or an employee in the office of the clerk shall check the signature used for the mail
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ballot,” only that the first step shall be to “check the signature used for the mail ballot
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against all signatures of the voter available in the records of the clerk.” This is exactly
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what Clark County does with its use of the Agilis machine. The state district court
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rejected this identical argument, finding it meritless. See October 29 Order at 12:20-24, a
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true and correct copy of which is attached hereto as Exhibit B.
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25 A true and correct copy of the Nevada Supreme Court filing is attached hereto as
5

Exhibit A.
26 6
Plaintiffs also contend that there are is no adequate legal remedy. Mot. at 6:18-23.
Not true. Plaintiff Stokke has an adequate remedy at law pertaining to her vote –
27 challenging the purportedly fraudulent valid under Nevada statute. Similarly, Plaintiff
28 Prudhome has additional access to observe vote counting, based on the pending status of
the Nevada state court case.

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1 As addressed in the state court matter, the Agilis machine conducts this initial

2 review, matching signatures approximately 30% of the time. The state district court,

3 following a day-long evidentiary hearing, found “[n]o evidence was presented of any Agilis

4 errors or inaccuracies.” Ex. B at 4:14. “No evidence was presented that there is any

5 indication of any error in Clark County’s Agilis signature match rate.” Id. at 4:14-16. 7

6 One unpursued ballot challenge by Ms. Stokke does not change this determination. The

7 remaining 70% proceed through a detailed human review process that complies with

8 Nevada law and has not been challenged by Plaintiffs in this case.

9 Second, Plaintiffs are unlikely to succeed on their Equal Protection claim. Nevada

10 statute (namely Section 22 of Assembly Bill 4) allows each county clerk to decide whether

11 or how to use “electronic means” to process ballots. This makes perfect sense in Nevada,

12 which has two urban counties and fifteen rural counties, allowing each to determine what

13 works best for their citizens. This constitutes a rational basis for the Nevada Legislature

14 to empower each county to decide whether to use electronic means. Under rational basis

15 review, legislation is presumed to be valid and will be sustained “if there is a rational

16 relationship between the disparity of treatment and some legitimate governmental

17 purpose.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993).

18 Nevada need not “produce evidence to sustain the rationality of a statutory classification,”

19 rather, “[t]he burden is on the one attacking the legislative arrangement to negative every

20 conceivable basis which might support it.” Id. (emphasis added). Assembly Bill 4 clearly

21 complies with rational basis review. Further, as this Court has already concluded, a

22 speculative prospect of voter fraud or vote dilution does not constitute an injury sufficient

23 to confer standing upon a plaintiff or petitioner who alleges a violation of the Equal

24

25 7 To be clear, Plaintiffs in the state court case challenged the scan resolution issue
26 also raised by Plaintiffs in this case. Compare Compl. at ¶ 14 (scanning resolution
allegation) with Nevada Supreme Court Emergency Motion (Nov. 3, 2020) at 8 (same), a
27 true and correct copy of which is attached hereto as Exhibit C. Plaintiffs’ counsel in this
case is Petitioners’ counsel in the state court case. Finally, the state court determined at
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the evidentiary hearing that one of Petitioners’ attorneys knew Clark County intended to
use the Agilis machine in advance of the general election. Ex. B at 4:5-6.
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1 Protection Clause. See Donald J. Trump for President, Inc., 2020 WL 5626974 at * 7;

2 Paher, 457 F.Supp.3d at 926-27.

3 Third, Plaintiffs are unlikely to succeed on their ballot-counting access claim. As

4 alleged by Plaintiff Prudhome, at most, he was denied less than 90 minutes of access to

5 ballot counting. Further access has been supplied by Clark County in accordance with the

6 Nevada state district court case.

7 B. The Balance of Other Winters Factors Weigh Strongly Against

Injunctive Relief
8

9 The other Winters factors favor denial of injunctive relief in this case. First,

10 Plaintiffs’ consideration of the relative harms relies completely on the assumption that

11 Defendants are not complying with Nevada statute. Mot. at 7:1-4. The lack of merits has

12 already been addressed.

13 Second, no consideration is given to the harms Defendants suffer from Plaintiffs’

14 creation of unnecessary additional processing. Specifically, at the state court evidentiary

15 hearing, the court found “that if Clark County is not allowed to continue using Agilis the

16 county will not meet the canvass deadline.” Ex. B at 4:17-20. Further, Section 23(4) of

17 Assembly Bill 4 requires rejected signatures to be cured by November 12. Plaintiffs’

18 proposed delay effectively eliminates voters’ ability to cure any potential issues with their

19 otherwise valid mail ballots, effectively disenfranchising them.

20 Third, enfranchising Nevada voters is in the public interest, particularly where

21 Plaintiffs offer no evidence outside of one voter who refuses to challenger what she

22 contends was her fraudulent ballot. Voting is at the heart of Nevada’s government and

23 evidence, rather than unsupported assertions, should be required to stop the counting of

24 valid Nevada ballots.

25 …

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1 V. CONCLUSION

2 Nothing proffered by Plaintiffs as evidence warrants the extraordinary relief they

3 seek. Accordingly, the emergency motion must be denied.

4 Dated this 6th day of November 2020.

5 AARON D. FORD
Attorney General
6
By: Craig A. Newby
7 GREGORY L. ZUNINO, Bar #4805
Deputy Solicitor General
8 CRAIG A. NEWBY, Bar #8591
Deputy Solicitor General
9 State of Nevada
Nevada State Attorney General
10 100 N. Carson Street
Carson City, Nevada 89701
11 Tel: (775) 684-1237
gzunino@ag.nv.gov
12 cnewby@ag.nv.gov
13 Attorneys for Defendant Barbara Cegavske, in her
official capacity as Nevada Secretary of State
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1 CERTIFICATE OF MAILING
2 I certify that I am an employee of the Office of the Attorney General, State of

3 Nevada, and that on this 6th day of November, 2020, I filed with this Court’s CM/ECF

4 electronic filing system, MOTION FOR TEMPORARY RESTRAINING ORDER

5 AND PRELIMINARY INJUNCTION, parties associated with this case will be served
6 by this Court’s electronic notification system.

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9 An employee of the Office
of the Attorney General
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